from the apparently,-speech-is-best-served-chilled dept

Our nation's universities are (or were) usually considered to be places that fostered open discourse and encouraged the discussion of controversial topics in order to promote the growth of both the students and their critical thinking skills. This is no longer the case. Many universities have crafted guidelines and policies that inhibit free speech, usually as an overreaction to offended sensibilities or criminal activity.

In a letter sent yesterday to the University of Montana that explicitly states that it is intended as "a blueprint for colleges and universities throughout the country," the Departments of Justice and Education have mandated a breathtakingly broad definition of sexual harassment that makes virtually every student in the United States a harasser while ignoring the First Amendment. The mandate applies to every college receiving federal funding—virtually every American institution of higher education nationwide, public or private.

The letter states that "sexual harassment should be more broadly defined as 'any unwelcome conduct of a sexual nature'" including "verbal conduct" (that is, speech). It then explicitly states that allegedly harassing expression need not even be offensive to an "objectively reasonable person of the same gender in the same situation"—if the listener takes offense to sexually related speech for any reason, no matter how irrationally or unreasonably, the speaker may be punished.

What the OCR (the Dept. of Education's Office for Civil Rights) has done is remove the "objective" standard and opened anything said or done to be judged as harassment from a strictly subjective viewpoint. This is coupled with some very broad definitions of the sort of behavior prohibited under these new national codes. Eugene Volokh's in-depth writeup lists some of the prohibited actions.

There is no longer any stipulation that the offending actions create a "hostile, offensive or abusive environment." And, again, the "objective and reasonable" yardstick has been removed and replaced with subjectivity.

I want to assure you in the clearest possible terms that OCR's regulations are not intended to restrict the exercise of any expressive activities protected under the U.S. Constitution ...OCR's regulations and policies do not require or prescribe speech, conduct or harassment codes that impair the exercise of rights protected under the First Amendment.

It appears the OCR is no longer interested in protecting First Amendment rights. As FIRE notes, the new OCR letter does not contain the phrases "free speech" or "First Amendment" anywhere within its 31 pages. It also contradicts the OCR's earlier guidance on harassment, where it stated that actionable (or prohibited) behavior "must include something beyond the mere expression of views, words, symbols or thoughts that some person finds offensive."

FIRE also points out that the new codes cover much more than "sexual" speech, being expanded to cover "gender-based harassment," including "harassment based on a person's nonconformity with gender stereotypes." All well and good to bring more people under this "protection," but it does mean that certain protected speech will now lose its protection, at least on campus. FIRE quotes a Third Circuit Court decision [DeJohn v. Temple University, 537 F.3d 301 (3d Cir. 2008)]:

[T]he policy's use of "hostile," "offensive," and "gender-motivated" is, on its face, sufficiently broad and subjective that they "could conceivably be applied to cover any speech" of a "gender-motivated" nature "the content of which offends someone." This could include "core" political and religious speech, such as gender politics and sexual morality.

The OCR's letter does some dangerous conflation, in addition to its general disregard for students' First Amendment rights. By using the criminal sexual assault that occurred at the University of Montana as a springboard for its harassment policies, the OCR aims to kill two birds with stone, but only manages to injure one with its feckless toss -- free speech. The actions condemned (and meant to be prevented) by this letter remain punishable by existing laws and policies. Adding further limits to speech is simply a welcome byproduct for establishments (universities and the government) that seem to feel more and more that only subjectively acceptable speech should be protected. This new, mandated First-Amendment-as-university-doormat will only serve to make students more closed-minded as they toe these aribitrary lines and make our institutions of higher learning pale parodies of their formerly progressive selves.

Reader Comments

Awesome, now even colleges are being forced to implement 'zero tolerance/thinking' policies, few years of this new regime and those graduating will be as brain-dead and terrified of reality as the people who suggested it.

Re:

They won't be graduating. The people will have high debts, no jobs, and few education prospects.

They will be indebted to a system that made them worse off and I'm sure that a lot of people will be angry that they were used to subsidize the irresponsible behavior of a government that didn't help them out with high student loans and few houses.

It makes no sense... These types of conditions are sure to bring about the worst in people by prodding them with sticks until they hit back in considerable numbers.

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And the people in the houses
All went to the university,
Where they were put in boxes
And they came out all the same,
And there's doctors and lawyers,
And business executives,
And they're all made out of ticky tacky
And they all look just the same.

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Re: worker factories

It's notable that many students coming to universities (especially "access" universities serving first-in-family college-goers) eagerly want to be 'trained' for jobs rather than become critically thinking, broadly knowledgeable citizens... this will not help.

But I think we need pushback from more than First Amendment grounds, because that only protects the *right* to express potentially objectionable or offensive ideas. Universities have a *duty* to expose minds to such things, IMO. To my mind, that's a core mission of universities: to intellectually challenge its students. And a necessary part of that is to make them uncomfortable with their present beliefs & attitudes, so they are motivated to examine them carefully. Of course, there are promising ways to do this, and there are crude ways... and there is actual harassment. But I wouldn't rely on a hastily drawn-up law to distinguish between those.

what better place to start the indoctrination of people, and this certainly sounds just like that, than in schools. i remember not so long ago where the entertainment industries were sending people into schools to try to make them aware that file sharing is bad, is a criminal offense, is something that must not be allowed to happen under fear of incarceration for an undefined term, which would be worse that beating the fuck out of some poor sod until death occurred (how the hell have we allowed the sharing of a movie to have a worse punishment attached to it than rape, robbery or killing someone?)!! to now threaten colleges with a withdrawal of funding over what they say/do to this extent is downright stupidity! is there going to be an end put to the downward slide of things in the USA and if so, when? those that are instigating and condoning this behaviour, this change of attitude and complete rebuttal of all that was held dear when America split from the UK because of the over trodden ways need to be brought to account and pay for what they are doing before things go so far as to not be able to get back

I find it offensive that I would no longer be able to speak my mind, even if I am being mindful, for fear someone out there might take offense to something simply because they couldn't be an adult and either blow it off or say "Hey, their allowed to have their opinion and I'm allowed to disagree with it." Anymore, we're encouraging a tattle-tail society coupled with severe butt-hurtedness(yes I made that up) ideology.

I'm long past worrying about someones feelings getting hurt simply because they feel like they need to be coddled like a whiny five year old. Life's tough sport, better grab a helmet.

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"for fear someone out there might take offense"

That's not the problem, vary few people are going to be that whiny five year old. The big problem comes from the college administration. They're going to be so worried about someone being offended and losing their government money (or even worse, them getting sued) that they'll go above and beyond to avoid it. If anything overheard by staff can be taken as offensive (even if you have to bang your head against the wall to do it), they'll react as if their lives were destroyed by it.

Re: As a supporter of on line education...

Land of the free? Not any more

And so goes the last hope for the free world eh? Looks like the US has just joined the small-minded rest-of-world. You may as well go the whole hog and change the style of your dates too seeing as that's the last difference.

And as for that poor follicaly challenged bird of prey you like to have as an emblem well...

Bring it on

Conditional federal funding wreaks havoc on the integrity of curricula, and federal funding of any kind--a.k.a. coercive subsidies--breaks the price system of any economy it touches. The removal of federal funding will push educational innovation in the right direction.

Right, so college students are officially kids, and the return value on tuition keeps plummetting. How old do we have to be to grow and come to terms with having genetalia now? Not saying I like abusive behavior, Im just sayin'.

And "The One" wants everyone to go to college

And now, perhaps, you understand why. Whole new generations of mindless drones (as mentioned before) who will be heavily in debt to the federal government when they graduate, since the Feds will soon be the only ones loaning money for college.

Universities are for instilling the goals of the ruling class.

For instance, Ivy League "economics" schools are funded by billionaires to promote myths of how good capitalism is for the workers. Universities are largely for children of the privileged to learn how to placate and manage the slaves.

All that's required to get a degree in "economics" is to parrot the opinions of the professors. It's disguised with a little math and frills. But it's all "book-learning", nothing like the education of having sweated in the sun and created material goods with your own labor.

And fraternities are to form mutual-aid societies that will later greatly ease, if not outright give, entry into the ruling class. Those silly -- and always homoerotic -- initiations are an insidious way to force submission to the group. If you've bent over to be paddled then you gave up individual will in order to be accepted as loyal member of a gang. It's the same indoctrination as militaries do in boot camp, only worse. -- And of course those arrogant kids believe themselves to be above such manipulation, that's why they fall for it, every damn one of 'em.

Re: Universities are for instilling the goals of the ruling class.

(regulated)capitalism IS good for the workers. Socialism and Communism take the majority of the fruits of their labors and bestow them upon others. Capitalism bestows the majority of the fruits of those labors upon the worker. And by "fruits of their labors" i mean the direct amount of time for money the person is putting in - even with todays fucked up tax system almost everyone still makes more money than they pay in taxes, as opposed to the opposite being true in socialist and communist systems.

Re: Universities are for instilling the goals of the ruling class.

It then explicitly states that allegedly harassing expression need not even be offensive to an "objectively reasonable person of the same gender in the same situation"—if the listener takes offense to sexually related speech for any reason, no matter how irrationally or unreasonably, the speaker may be punished.

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Hell I bet you couldn't be on any decent sized public university these days without hearding a "that's what she said" line at least once.

I'd lay odds that's the case over at WASU (Washington State University, home of the Cougars and the state's "party school"), except you'd probably hear that sort of thing at least three or four times a day.

...Christ on a pogo-stick, the Man really is trying to keep us down.[/half-sarcastic]

Although correct me if I'm wrong, but isn't FIRE a little sensitive when it comes to things that might resemble a violation of the First Amendment (and God bless 'em for it.)?

With this move, public universities (with the full backing of government) have decided to violate students' 1st Amendment rights for the sake of protecting certain people's emotions. What better time to condition the coming generation to acceptance of authoritarian rule than before they've become fully independent members of society?

A great day citizens

The wheel keeps turning....

...and never stops. Recall the Free Speech Movement of 1964-65 - what was political censorship is now sexual censorship. Someday, somewhere a young woman will stand up and say "We are not afraid of words."

Then we attack science and try to prevent our kids from even being thought about it in the first place (like evolution, global warming, and throw sex education into there to as an area regularly censored for political reasons).

Then we start to rewrite history books in ways that largely ignore reality (like claiming Joseph McCarthy was actually a hero, because most of the people who's lives he ruined were real communists! Never mind that it was never illegal to be a communist in the first place, or that McCarthy started his communist witch hunts as part of a desperate reelection ploy, rather then an actual communist infiltration into American society like he claimed).

Then we move onto dumbing down colleges in the same way.

Is it any wonder why people keep on saying that our school/education system is going downhill?

Don't do this for us, please

As a gay man who got bashed pretty regularly at the 80% male engineering school I went to...

as a former activist and current contributor to equality and anti-bullying campaigns...

and as a guy who used to vote Democrat but switched to Green for the last election because I find Obama too conservative in too many ways...

This is reprehensible.

The only comfort I can take from it is that it's so prima facie unconstitutional that all the administration will end up with is a bunch of case law against them. But in the meantime, for the kids who'll inevitably lose their tuitions and a shot at a degree because they use the wrong colloquialism in the wrong time and place, this is a life-altering tragedy.

as an asexual robot I find humans having ANY sort of genitals or sexual preference to be offensive.

I therefore want to complain about the following groups:
Men, Women, boys, girls, transgender pre-op boys, transgenger pre-op girls, transgender post-op boys, transgender post-op girls, "other", and asexuals (for flaunting their non-sexualness)
I also find trousers and skirts offensive because they draw a line between the acceptable (above the waist) and the naughty parts (below the waist).

I also find full body-bag style clothes offensive because by completely hiding every part of the body they FORCE me to use my imagination to think about whats going on underneath....

While I agree that this new policy aimed at colleges and universities is a bit broad and takes a "zero tolerance" policy in regards to sexual harassment on campuses, I have to ask, "what took them so long"?

First, Washington never considered this to be an issue until 2013? Now that the Obama Administration has been getting one beating after another and they are embroiled in one disaster after another, the administration is trying to score some points but they are doing so for the wrong reasons.

Sure, draft policy for campuses that forces every campus to take every complaint of sexual harassment as serious as they would any other crime but it seems there are harsher penalties for cheating on an exam then there are for sexual harassment and that is simply unacceptable.

Finally, I think that the policy needs to be scaled back so that it doesn't chill free speech. If some people are talking innocently, or cracking a joke, and a female student happens to be walking by, I think that punishment deeming it as sexual harassment should be taken in context of the conversation. if the students were talking in a manner because they first saw a female student walking by then they should be penalized for sexual harassment. But, there are just so many innocent discussions that now stand the chance of being seen as sexual harassment.

Are dumb blonde jokes now considered sexual harassment? What about sorority and fraternity parties or initiations that often involve sex?

Apparently, the government is requiring, among other things, that the university STOP requiring clear and convincing evidence to punish students. I mean, who needs clear and convincing evidence as long as we think you did it?

And to make things worse, the government calls out the university for not changing its evidence standards IN THE MIDDLE OF A CASE. Can you imagine preparing a defense only to find that the other side's burden of proof has suddenly been lowered?

Wrong angle

This article is written entirely from the wrong angle, and so is every comment I've seen in the thread. The attached document makes abundantly clear that the concern is effectively dealing with sexual assault. A cursory web search reveals that sexual assault is a serious problem at this school. Neither the DoJ nor the DoE is trying to curtail students' rights of free speech. It is not particularly surprising that most commenters have not troubled to read the document, but it is disappointing and discouraging that Tim seems not to have read it.

Re: Wrong angle

"Neither the DoJ nor the DoE is trying to curtail students' rights of free speech."

Then they should define their terms so it doesn't look like they are. Saying "they'll never actually prosecute anyone" has lost all credibility. Even if it's TRUE, how is a student supposed to know that?

"The attached document makes abundantly clear that the concern is effectively dealing with sexual assault. A cursory web search reveals that sexual assault is a serious problem at this school."

And a dirty joke is not a sexual assault. (It's also not sexual harassment unless it's a pattern of behavior against someone, which is kind of the point.)

I would also say that lowering the standards of evidence and implementing double jeopardy (if a student is acquitted, the accuser can appeal) is not the correct way to go about lowering the number of sexual assaults. We need to have due process to protect the rights of the accused.

Re: Wrong angle

Just a shot. Take every occurance of 'sexual assult' in the above post and replace it with 'national security'.

Now can we discuss the slippery slope of vague, rights limiting regulation?

No one in the thread, or Tim, has claimed sexual assault isn't a problem, or an affront to civil society and individual dignity. What people are claiming is that the rules are too vague, and too restrictive in terms of limiting first amendment rights.

Additionally, I will claim that implementing this draconian rule will have no impact on the frequency of sexual assault, nor the damages wrought on its victims. What is needed is more civilized behavior in the form of immediate negative reinforcement of better behavior on criminals caught in the act.

"the United States considers a variety of factors, from both a subjective and objective perspective to determine if a hostile environment has been created" (page 9)

That hardly sounds like Volokh's interpretation. I'm not a lawyer, but I'd say this document is calling for all factors to be considered, it certainly doesn't say if anyone is even slightly offended, toss'em all in jail, as Volokh seems to imply. His summary is really quit misleading in my opinion.
.

I'm going to start off by saying that sexual harassment is wrong, and if someone is doing something or saying something that makes you uncomfortable, that's a horrible thing.

That being said, the thing that always stands out to me in sexual harassment policies is the wording choice of "unwelcome". Now, it makes perfect sense, if you and your mate have an agreement between each other to send dirty pictures to each other, and nobody else is exposed to them, then there should be no problem there. The problem with the broadening of the definitions is that how do you find out if something is unwelcome to someone? If the definition becomes so broad, how to you even ask someone "hey, I've got this bit of porno I think you might like, do you want to see it?" Even that statement, under sufficiently broad definitions could be determined to be sexual harassment? The other person can't even be pro-active to you, under the same fear "I wouldn't mind if you showed me some porno"... nup, harassment there too.

Don't Trust "FIRE"

Has anyone bothered to actually check out FIRE's website? The organization behind it is clearly publishing right-wing anti-intellectual propaganda designed to stifle the free exchange of information in higher education (ironically enough). Many of their articles seem to attack anyone who doesn't support a conservative economic and social agenda (just look at who's listed in the "Media Room" section).

The context of this particular article is interesting, as it's embedded in a larger narrative that seems to give the impression that sexual harassment and abuse is actually a non-issue for women on campus, which -- if you ask any women on campuses today -- is clearly not the case.

I frankly find thefire.org an insidious presence online -- a stealth ultra-conservative group that makes things sound just reasonable enough that their articles get picked up by respectable websites like Techdirt (and Boing Boing, the other website I've seen citing them) because they at first glance appear to support a more progressive "open" political agenda.

I would urge the authors of this website (as well as its readers) to use good judgement and critical analysis of sources before jumping on the bandwagon.

Re: Don't Trust "FIRE"

I disagree with your assessment of FIRE. They support things like students' right to put up an "obscenity wall", and I can't see the right wing throwing their support behind that. I also see on their site an article supporting a university's "sex week" and the use of student fees to fund it without the students being able to opt out. If you read the article, a Republican state senator is opposing it. I guess FIRE's conservatism is just really, REALLY stealthy?

"designed to stifle the free exchange of information in higher education"

What are you TALKING about? Where on earth do you see them trying to stifle information?

Re: Don't Trust "FIRE"

The fact is that right of center political speech, defense of traditional morality, and overt expressions of Christian piety are already suppressed on many campuses by university administrations without any push from Washington, while left of center political speech, objection to traditional morality and attacks on Christianity are given free reign. Any organization which genuinely defends free exchange of ideas on university campuses will, in the present environment appear right-wing, just as any organization which genuinely defended free exchange of ideas on university campuses in the mid-1950's woudl appear left-wing.

Look at the upside

As has been oft observed on this website, new ideas tend to rearranged the landscape of winners and losers. If speech with a sexual component is outlawed, then think of how it will change the course catalog. Gone will be the med school, biology and ecology departments, and of course all agriculture related subject - alas no more animal husbandry or vet schools. But that may not be the end of the matter. Can we continue to condone the teaching of romance and other languages that depend on gender for word forms?